Lewis v. Austin

• Decision Date: 06 May 1887
• Citation: 11 N.E. 538,144 Mass. 383
• Parties: LEWIS v. AUSTIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 383

11 N.E. 538

LEWIS v. AUSTIN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 6, 1887

COUNSEL

W.O. Kyle, for defendant.

OPINION

The bill of exceptions presents but one question, namely, as to the jurisdiction of the superior court in a suit wherein the sole plaintiff was dead more than a year before the date of the writ. It is not a case of misnomer, nor of clerical error, nor of mistake of fact, nor of formal defect in process,--a false writ intentionally made by an attorney who had full knowledge of the facts. The defendant contends that the writ was a nullity; that all proceedings in the suit were void; that the superior court never had jurisdiction of the parties, or of the subject-matter; and that no amendment can cure the defect, so that a valid judgment can be rendered. At common law, death of plaintiff before purchase of writ was ground for abatement. Com.Dig. "Abatement," E. 17. The general rule to be observed is that where the writ is de facto a nullity, so that judgment thereupon would be erroneous, there the writ is de facto abated. Bac.Abr "Abatement," K. See Hart v. Fitzgerald, 2 Mass. 509, 512; Tingley v. Bateman, 10 Mass. 343; Elder v. Dwight Manuf'g Co., 4 Gray, 204; Wells Jur. 2; Ex parte Cohen, 6 Cal. 319; Sheldon v Newton, 3 Ohio St. 494; Lawrence v. Smith, 5 Mass. 368. Appearance does not give jurisdiction. Osgood v. Thurston, 23 Pick. 110; Nye v. Liscombe, 21 Pick. 263. See Reid v. Holmes, 127 Mass. 326-327; citing Loring v. Folger, 7 Gray, 505, and Jochumsen v. Suffolk Sav. Bank, 3 Allen, 87-95. No amendment can be permitted which will make an entirely new case against entirely new parties to the record, ( Douglas v. Newman, 5 Bradw. 518, 520;) and it is not permissible to strike out the name of a sole party, either plaintiff or defendant, and substitute the name of another person. Davis Ave. Ry. Co. v. Mallon, 57 Ala. 168; Dubbers v. Goux, 51 Cal. 154; Davis v. Mayor etc., 14 N.Y. 526; Marsh-River Lodge v. Inhabitants of Brooks, 61 Me. 586. See Hurst v. Fisher, 1 Watts & S. 438; Clay v. Oxford, 4 Hurl. & C. 690, L.R. 2 Exch. 54. See, also, 15 & 16 Vict. c. 176.

H.J. Edwards, for plaintiff.

When, on the defendant's petition, the judgment was vacated and the action brought forward, the court had the same power to allow the amendment "as if the judgment had not been rendered." Pub.St. c. 187, § 17. That the court had power to allow the amendment, by substituting the executrix's name for that of M.A.Lewis.Pub.St. c. 167, § 42; Winch v. Hosmer, 122 Mass. 438; Jennings v. Collins, 99 Mass. 29, 32; Costelo v. Crowell, 134 Mass. 280; Pierce v. Charter Oak Ins. Co., 138 Mass. 151, 164; Buckland v. Green, 133 Mass. 421; Hutchinson v. Tucker, 124 Mass. 240; Emery v. Osgood, 1 Allen, 244; Inhabitants of Winthrop v. Farrar, 11 Allen, 398; Crafts v. Sikes, 4 Gray, 194; Cain v. Rockwell, 132 Mass. 193, 194; Fenton v. Lord, 128 Mass. 466, 469. As Samuel W. Spofford owned the claim and was the real plaintiff, and Marshall A. Lewis, if he had been alive, would have been a mere nominal plaintiff, just as his executrix was after her name was inserted, the mistake was a mere clerical one which injured no one, occasioned probably by their initials being the same. The case for amendment is therefore stronger than those cited under our second point. If the court had no jurisdiction of the nominal plaintiff before the amendment, it certainly had after the amendment. The case, therefore, is not unlike that where the court has no jurisdiction by reason of the ad damnum being too large or too small, but has jurisdiction after allowance of an amendment reducing or enlarging it. Hart v. Waitt, 3 Allen, 532, and cases. W. ALLEN, J.

A judgment was obtained in New York in favor of Marshall A Lewis for the benefit of one Spofford, Lewis having no beneficial interest in it. Lewis died soon after, and his widow, Mary A. Lewis, was appointed his executrix, and assigned the judgment to Spofford. Spofford afterwards commenced an action in the superior court on the judgment, in the name of M.A. Lewis, intending Marshall A. Lewis. The only question of law is whether it was in the power of the superior court to allow an amendment substituting the name of M.A. Lewis, and stating that the action is brought for the benefit of Spofford. We think that the court had authority to allow the amendment. Spofford was the real plaintiff; and, if he had brought the action in his own name, the case would have come within the cases of Costelo v. Crowell, 134 Mass. 280; Winch v. Hosmer, 122 Mass. 438; and Pierce v. Charter Oak Ins. Co., 138 Mass. 151. It would have been allowed even in England. Blake v. Done, 7 Hurl. & N. 465; La Banca Nazionale v. Hamburger, 2 Hurl. & C. 329. So, if the legal right of action had been in him, and he had brought the action in another name, whether there was or was not a known person of that name, he would have been allowed to substitute his own name as plaintiff. Crafts v. Sikes, 4 Gray, 194; Cain v. Rockwell, 132 Mass. 193. As the legal owner of a demand who brings a suit upon it in another name, or the name of another person, can be allowed to substitute his own name, and as the beneficial owner who brings a suit in his own name can be allowed to substitute the name of the legal owner, it would seem to follow that when the beneficial owner brings a suit in a name, not of the legal owner, whether that of an existing person or not, the court would have authority to allow him to substitute for it the name of the legal owner. It is no objection that there is no person in being of the name in which the suit is brought. In Crafts v. Sikes, ubi supra, it was regarded as an argument against the power to allow the amendment that there was a person of the name of the plaintiff named in...